On October 4th, s52-56 of the Coroners and Justice Act 2009 came into force.

These sections have a significant impact on the defences to murder; namely clarifying the defence of diminished responsibility and abolishing the common law defence of provocation and replacing it with a partial defence of “loss of self-control”.

The Law Commission in its first report stated that there were significant problems with the defence of provocation, as it did not appear to be underpinned by any clear rationale and additionally that the concept of loss of self-control had become very troublesome. In particular there were serious problems with applying the loss of self-control requirement to “slow burn” type cases. The Commission in their no 290 report proposed that the law on provocation be re-defined to that of ‘gross provocation’, which was revisited and affirmed in their Report No 304.

The Commission also proposed in 290 and 304 that the defence of diminished responsibility should be modernised as it was not reconcilable with current medical definitions and required improvement in order to be accessible to medical experts, whose testimony is crucial to the legal validity of the defence.

Changes?

Diminished Responsibility

s52 of the Act significantly improves on the definition given by s2 of the Homicide Act 1957. The new definition includes that the “abnormality” requirement may arise from a recognised medical condition, as well as allowing more weight to be attached to the expert testimony of medical professionals in determining under 1A whether the defendant can form a rational judgment or exercise self-control. This is a much welcome development as the old law had caused much confusion on this appoint to appear. Moreover it would seem that this new definition is consistent with the House of Lord’s decision in R v Dietschmann.

Provocation.

The old defence of provocation contained in s 3 of the Homicide Act 1957 has been abolished and replaced with the new partial defence to murder – loss of self control by s 55 and 55 of the Coroners and Justice Act 2009. There are a few similiarities between the old and new law and of course some stark differences. The old law contained in 3 of the Homicide Act 1957 was largely based on Devlin J’s famous dicta in R v Duffy

“Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable man, and actually causes in the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him or her for the mement not master of his mind”

The Homicide Act revised the common law rule, as to when the provocation defence would arise. The loss of self control must have been sudden and temporary, therefore excluding the opportunity for defendant’s suffering from domestic violence the chance to raise their defence if their retaliation resulted in the death of their abuser and the loss of self control was not sudden and temporary.

The Act further imposed two conditions on raising the defence; the first requirement was subjective, was the defendant provoked to lose his self control and secondly the objective requirement – was the provocation enough to make a reasonable man do as he did. The objective requirement caused controversy in the Courts as to what characteristics the ‘reasonable man’ should have, in particular the decision of the House of Lords in R v Morgan Smith and of the Privy Council in Holley were at odds with each other, between a stringent and more flexible approach, the stringent test in Holley however prevailed.

Under the new partial defence of loss of self control s54 CJA 2009 resembles the old law of provocation with a few differences. In order to raise the defence the loss of self control must have a qualifying trigger (a subjective test) and a person of the defendant’s sex and age with a normal degree of tolerance and self-restraint and in the same circumstances might have reacted in the same or similar way to the defendant (an objective test akin to Camplin). A main requirement from the previous law has however been removed, the loss of self control no longer needs to be sudden, this may make it easier for those who suffer from domestic violence to raise a defence of ‘loss of self control’ instead of being stigmatised with having to raise a defence of “diminished responsibility”. Yet the nexus between the loss of self control and the killing is somewhat retained, as the defence cannot be raised if it is considered that the defendant acted in revenge. Moreover the trial judge is given an important role in deciding whether there is sufficient evidence to raise the defence on which a jury properly directed could reasonably conclude that the defence applies.

The Qualifying Trigger

Defined in s55 the qualifying trigger amends the subjective test under the old law. Within this section as prescribed conditions as to when a defendant may have a loss of self control. The can be achieved by a number of ways; the defendant’s loss of self control was due to a serious fear of violence, was attributable to a thing done or said which constituted either circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wrong. Both of these requirements are however negated should the defendant incite the actions to be caused and then seek to rely on them as an excuse. Additionally sexual infidelity (previously considered to be the grossest form of provocation) is no longer to be regarded as an adequate reason.

The addition of a qualifying trigger is desirable as it prescribes what is likely to give rise to a defence of loss of self control. However upon close analysis these changes could seem little more than a glossy exterior. The exclusion of sexual infidelity seems to ignore that possibilities of other acts of gross provocation that may occur, such as honour killings when a defendant may feel they have been ashamed by the act of a member of their family. Should this have also not been said to not give rise to the defence?

Conclusion

Whilst the changes to the defence of diminished responsibility and the new statutory loss of self control aptly bring in the proposals of the Law Commission, the amendments still feel somewhat inaccessible. There are elements of the new loss of self control defence which could cause problems in the courts. What if a defendant felt that he had been justifiably wronged yet did not have a loss of temporary control? Has the loss of control requirement lost its emphasis? With there no longer being a requirement for the loss of self control to be sudden, how will the courts differentiate between cases where the real motive was revenge for domestic abuse rather than a loss of control merely days after the abuse had happened?

The changes brought on by the CJA 2009 still require some explanation and surely the Courts will be more than helpful in deciding what the new changes mean.

It’s one of those things that parents worry about. Although son is a good boy, never been in trouble, son is also at ‘that age’. He wants to go out with his friends, wants some independence, wants to stay at his friend’s overnight. All perfectly normal family life so far. Until parents receive a phone call in the early hours. Son has been picked up by the police; no they can’t say why, but he’s not in trouble, no crime has been committed, but he’s been taken to a safe place because he was in danger. No, the police can’t say why, apart from he was with an ‘inappropriate adult’.

Son and parents want some answers from the police, but as can be seen below, it’s not quite that simple. Son applies for judicial review seeking declaratory relief and damages.

A (A Child) v The Chief Constable of Dorset Police

The Claimant ‘A’ is a sixteen year old boy. The defendants are Dorset Police and ‘B’ is an interested party. ‘A’ sought judicial review, ‘B’ applied to the High Court to prevent disclosure of sensitive documents.

In July of last year, ‘A’ went out with 3 friends for an evening, telling his parents he was staying the night with one of the friends. At about 11pm ‘A’ and his friends were stopped by police officers and searched for drugs and alcohol – none were found. Shortly afterwards, the group were again stopped by the police who asked where they were going; the group explained that they were going to get food from a take-away. At about midnight the group were leaving the take-away when yet again the police appeared and this time took the group to a safe centre in Bournemouth.

‘A’s parents were informed of his detention at the safe centre and duly went along to pick him up. The police explained that ‘A’ wasn’t in any trouble and hadn’t committed any crime. Inevitably, ‘A’s parents wanted to know why their son had been taken to the safe centre, but were only given a ‘Stay Safe’ document and told that ‘A’ had been seen with an ‘inappropriate adult’. ‘A’ applied for judicial review seeking declaratory relief and damages. The ‘inappropriate adult’ ‘B’ sought directions from the court to prevent the defendants (Dorset Police) disclosing confidential information to the claimant. ‘B’ argued that disclosure of summary grounds for resisting the claim should be prevented on grounds broadly based on privacy, proportionality and confidentiality.

The police contend that ‘A’s detention at the safe centre was lawful and in accordance with section 46, Children Act 1989, which allows a child to be taken into police protection if the child ‘be likely to suffer significant harm’. The claimant submits that the detention was unlawful on grounds that it fell outside the power of the statutory provisions, amounting to ‘A’ being deprived of his liberty under Art 5 ECHR, and the failure of the police to give reasons for ‘A’s detention amounted to breach of statute.

B’ contended that ‘A’s application for judicial review could be determined without disclosure of further information as to the reasons why the police believed ‘A’ to be in danger. Alternatively, that disclosure be limited to ‘A’s legal team only, without disclosure to ‘A’.

The High Court were bound not to infringe ‘B’s’ rights under the ECHR by ordering disclosure, but similarly concluded that ‘A’ and his parents ought to know why ‘A’ was taken into police protection, what he was being protected from and why it was necessary for the police to act as they did.

The court concluded that the only realistic way to resolve the matter between the parties was that ‘A’s legal team review the suppressed evidence and convey the gist of the nature of the harm to ‘A’. This proposal was based on the consent of the parties and subject to ‘B’s pending application to the Court of Appeal.

Peter Sutcliffe, perhaps better known as the Yorkshire Ripper has failed in his High Court application to have a minimum term set in order that he be given a chance of parole. Sutcliffe was responsible for the murder of 13 women and the attempted murder of a further 7 women during that 1970’s and early 1980’s.

Initially, it was thought that Sutcliffe’s only interest was in killing prostitutes, but as time went on, he murdered a young student and a Sunday school teacher.

Unfortunately, I remember only too well the terror that existed during the late 1970’s, when murder after murder took place. I was a young teenager at the time, and although I didn’t live in Yorkshire, the news articles spoke of the possibility that the killer may widen his territory in order to evade detection. The media practically begged women to ‘shop’ their husbands, boyfriends or sons if they were absent from home during the times that the murders took place, such was the desperation to catch the ‘Ripper’. It is no exaggeration that during this time, very few women ventured out alone after dark and the night time streets were lonely places, bereft of pedestrians. I remember the efforts that parents went to in ensuring that their daughters didn’t have to walk home alone following an evening of socialising and there was much taxiing of friends to and from parties and discos. I also remember the short walk from the school bus stop to home during the dark Winter evenings and recall that my heart would beat very quickly for the few moments it took for me to reach the safety of our kitchen door.

I think Mr Justice Mitting was quite right in ruling that Peter Sutcliffe should never be released, the Yorkshire Ripper’s hold of fear over the entire British female population during the 1970’s and early 80’s should never be forgiven.

On the 24th May the Supreme Court started to hear the devolution appeal from Scotland,as to whether or not there is a right to access a solicitor whilst being detained in a police station.

JUSTICE have being given permission to intervene on this important matter.

The right to access legal advice is a right that has always been regarded as fundamental in English and Wales, but as JUSTICE note, not entirely in Scotland. The law in England and Wales places a great emphasis on being allowed to access a lawyer and consult with them in private, see s 58 of the Police and Criminal Evidence Act 1984(PACE). The remedies available for a breach of s 58, may include exclusion of evidence under s 78 or 76 of PACE.

The common law also supports a strong right to access a solicitor within a reasonable amount of time see R v Chief Constable of South Wales, ex parte Merrick [1994] 1 WLR 663.

The Cadder case will ultimately involve the difference between English and Scots Law, but also the extent to which the right of access to a lawyer is embedded in the European Court of Human Rights case law.

Though whilst I am not an expert on Scots criminal Law, it will be interesting to see whether the Supreme Court believes that the Scottish courts have fallen foul of the European Convention. In 2009 the House of Lords in Re McE set out the limits to s 58 and the common law right to access a lawyer, with good coverage (albeit perhaps not the best interpretation) of the European Jurisprudence on this point.

The Grand Chamber of the European Court of Human Rights last week heard the case of Al-Khawaja and Tahery v. United Kingdom. You can listen to the podcast of the proceedings here.

Al-Khawaja and Tahery were both convicted on evidence, that included the use of hearsay. Mr Al-Kawaja was convicted on two counts of indecent assault whilst his patients were under hypnosis. One of the complainants died before trial, however made a statement to the police that was admitted as Hearsay, there being no other evidence as to her assault apart from the statement she made to the police. Therefore no hearsay, no count one.

Mr Tahery was convicted of wounding with intent to cause GBH, based on evidence of one witness who claims he saw Tahery stab the victim. At trial the witness’ statement was read under the provisions of s 116(2) (e) and (4) of the Criminal Justice Act 2003, because he was too afraid to attend trial.

When firstly taking their case to the European Court of Human Rights, the Court held that there had been a breach of Art 6(1) and Art 6(3)(d)

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

The court held that the evidence against both applicants was either the sole or at least the decisive evidence against them and that in further cases where witnesses are unavailable, any conviction based solely or decisively on such evidence will be in breach of Art 6(1) and Art 6(3)(d). The Government sought leave to appeal to the Grand Chamber.

In R v Horncastle, the exact facts of Alkawahja and Tahery arose again. Mr Horncastle conviction was based solely or decisively on the evidence of a witness that had died before trial, but had given a written statement to the police, that was read out to the court under the hearsay rules. The second defendant Mr Blackmore argued in similar terms to Tahery, the witness was too afraid to testify, so their statement was also read under the hearsay provisions.

The Court of Appeal sitting as a special five bench panel, refused (to put it lightly) to follow the European Court, and held that the provisions contained within the Criminal Justice Act 2003, such as the power to stop a trial from proceeding on the basis of unsound hearsay evidence s 125, and the discretion of a trial judge to exclude evidence under s 78 PACE. The court then gave leave to appeal to the to the Supreme Courtwho robustly defended the Court of Appeal’s judgment and held the European Court of Human rights had not been clear as to what the ‘sole or decisive’ test meant, and that they had seemingly appeared to have created a ‘sole or decisive’ test that hadn’t appeared earlier in the case-law. Following from the uncertainy of what the European Court meant when setting out their test, the Supreme Court held that they were not bound to apply the sole or decisive test.

The Grand Chamber granted an adjournment so that Horncastle could be heard in the Supreme Court, and have now just heard argument in relating to the original Al-khawaja and Tahery case.and breathe

With extreme anticipation, criminal defence lawyers will be waiting to see whether the Grand Chamber re-affirms its decision in Al-Khawaja, that a conviction based solely or decisively on the use of hearsay evidence, may lead to a violation of Article 6(1) and 6(3)(d). The Supreme Court showed no inclining of budging on the issue, which of course may lead the Grant Chamber to be somewhat more resilient to uphold the lower sections findings.

The problem yet to be discovered, is how many convictions are based solely or decisively on the use of hearsay evidence? Could there be a matter of policy involved in their Lordships decisions? Furthermore the courts of England and Wales have always been very wary of the use of anonymous witnesses, where the defendant will not know who is behind the witness screen, but why not so to the Hearsay provisions ? Where similiar problems arise, a lack of defence counsel to effectively cross examine the witness’ evidence.
One thing is for certain the spat between the domestic courts and the European court, may not yet be over for quite some time . . .

This post is a first in a series of short articles examining the key proposals of the Freedom (Great Repeal) Bill as announced today in the Queen’s Speech.

The Queen’s Speech today announced the coalition government’s proposals to perform an enormous overhaul of legislation that aims to set Britain at ease. Of particular interest are the proposals that are soon to be put forth in the Freedom (Great Repeal) Bill and secondly the Police Reform and Social Responsibility Bill.

Number 10 informs us that the main aims of the Freedom Bill will be to restore civil liberties and freedoms, reducing state inference with citizens and making the state more accountable to its people. Whilst the bill is yet to be drafted, the new coalition government has set out key areas of reform, whilst it is still unknown if all the vast proposals originally made by Chris Huhne MP, the Liberal Democrat Shadow Home Secretary before the election will come to pass, some indication has been given by the Deputy Prime Minister Nick Clegg as to the key aspects of the bill that will be focussed on.

Anonymous defendants in rape cases

Why the government has sought to introduce this is particularly mysterious. Especially when on the other side of the coin, anonymous witnesses has recently caused great difficulty. The House of Lords decision in Davis ruling that a defendant has a right to face his accuser, or otherwise would be required to take ‘blind shots at a hidden target’, that the use of enabling anonymity in order to let a witness to testify, were contrary to the principles in the common law. The following legislation in the Criminal Evidence (Witness Anonymity) Act 2008, and the latest rules now in force under the Coroners and Justice Act 2009, which enable a judge to grant anonymity orders provided certain conditions are met. These provisions are all meticulously worked out in order to ensure a fair trial for the accused, whom it may be said cannot effectively challenge the evidence of anonymous witnesses.

Now switch sides, what are the problems when anonymity is granted for those charged with rape? What are the benefits and disadvantages of having an anonymous defendant? Are the benefits to stop cases like this? In such cases surely it is the role of the CPS, (if the CPS still even have the power to charge after the government’s first term) to decide if there is enough evidence to go to trial, for a serious offence. Arguably the stigma of being named a rapist, which in some instances has assured victims that they have been ‘named’ and ‘shamed’, can be countervailing, with suicide amongst those that are wrongly accused. Another benefit may be reinforcing the burden of proof, the alleged rapist, is not a rapist until proven to be, then their details may be published.

The disadvantages however are equally as important. When complaints go to the police, victims feel assured that the alleged offender is named, which may inspire others to report that they too have been raped. If this stops, then it may take more attempts to bring a serious offender to trial, due to the unwillingness of other people to come forward.

Is there also a case to be made on the effect of an anonymous defendant, and its effect on the jury? The Courts so far have placed great reliance on the need to see demeanour of a witness, how they react, which is why currently anonymous witnesses are seen by the judge and the jury. Could a possible effect be that the jury see the defendant as more credible? He is being granted the status of being anonymous, so therefore his account is to be more believed than the witnesses and evidence against him?

The problems with an attempt to allow defendants tried for rape, to be given anonymity are numerous, but until the actual bill can be analysed as to the potential problems that may arise, it is yet to be seen as to whether it is a good idea or as it may turn out, a very one

and finally….

The right to peaceful protest without being criminalised

It is ironic and a sad state of affairs that the government should set its agenda, to re-invigorate the right to a peaceful protest, when on the day of the opening of Parliament, Brian Haw should be arrested for obstructing a police search on the green of Parliament Square, and that several MPs should refer to the ongoing protest there, as a sham, and how it should be closed down because it offends them. Perhaps new legislation, better control, and accountability of the police is needed….